Probity and Process in the Public Sector
Gary Power
Senior Lawyer
General Litigation & Commercial
T (07) 3360 5746
gary.power@ags.gov.au
What is Probity?
“uprightness, honesty, proper and ethical
conduct and propriety in dealings “ OED
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Some Background
— Competition reforms of the 1990's
— McPhee review of the AATS (1992)
— New law - Hughes Aircraft Systems International
v Airservices Australia (1997)
— New prescriptive requirements - US/Australia
Free Trade Agreement
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The Present Environment
Commonwealth
— Financial Management and Accountability Act
1997 (FMA)
— Financial Management Guidance 1-15
— Commonwealth Procurement Guidelines
— Australian Standards: Assuring Probity in
decision-making (HB 325-2008)
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The Present Environment Cont’d
Queensland
— Financial Accountability Act 2009
— Public Sector Ethics Act 1994
— Integrity Act 2009
— State Procurement Policy
— Ethics Probity and Accountability Guide - CMC
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Probity Principles
— Compliance with legal and regulatory
requirements
— Ensuring a competitive process
— Fairness and Impartiality
— Identifying and managing conflicts of interest
— Security and Confidentiality
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Potential Probity Problems - 1
Procurement Strategy and Document
Preparation Stage
Issues
— Defensible in terms of ‘competition requirements’
— Complete, compliant, relevant and makes sense
— Evaluation methodology makes sense
— Probity culture
The Tender Stage
Issues
— Has the market been properly informed?
— Have the tenderers been given fair access to information?
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Potential Probity Problems - 2
The Evaluation Stage
Issues
—
Have tenders been appropriately received and opened?
—
Compliance with mandatory requirements
—
Compliance with the evaluation methodology
—
Protocols re Confidentiality; Fraternisation; Security; Q&A
The Post Tender Stage
Issues
—
Have the negotiation issues been properly taken into account in
the evaluation?
—
Are negotiation directives/protocols being observed?
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Managing Probity
— Planning
— Auditing/ ad hoc Advising
— Commonsense
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The Essentials of a Probity Plan
— Impartiality and Integrity
— Roles of probity auditor, probity adviser, legal
process adviser
— Conflict of Interest (personal, familial, other –
actual and perceived)
— Confidentiality
— Fraternisation
— Security
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Other Documents
— Tender Addenda
— Probity Plan
— Evaluation Plan
– identifies roles of relevant parties
– deals with initial mandatory compliance issues
– evaluation methodology effectively relates to
the evaluation criteria detailed in the Tender
– protocols to deal with the question and
answer/clarification process, negotiation
process
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Some issues that have arisen
— Tender is late
— Tenderer so bereft of detail it cannot be
meaningfully evaluated
— One of the consultants assisting with the
evaluation used to work for the tenderer
— There is disagreement amongst the evaluators
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Questions
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